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if 


liijjiinia  m\  l^olagamg. 


jibvi:h;v7  of  the  orusrjojsr 


SUPREME   COURT 


P 


XJISriTEID    STATES, 


Rejxdered  (it  tTie   October   Terrrh^    1878, 


IN  THE  CASE  OP 


GEORGE  REYNOLDS,  Plaintiff  in  Error, 


/O 


THE  UNITED  STATES,  Defendant  in  Error 


BIGAMY  AND  POLYGAMY. 


R^JVJ^EW  OF  TitE  oriNioisr 


SUPKEME   COURT 


XJlSriTEID    STATES, 


Mertdereci  (zt  tJte   Octohev   Ternx^   1878, 


IN  THE  CASE  OF 


GEORGE  REYNOLDS,  Plaintiff  in  Error, 


vs. 


THE  UNITED  STATES,  Defendant  in  Error. 


BY  AN  OLD  LAWYER. 


^ 


^  \J  *^ 


mm  »¥  f  »<8sa)HB 


It  is  proposed,  in  the  following  paragraphs,  to  examine  the  de- 
cision of  the  Supreme  Court  of  the  United  States,  in  the  case  of 
George  Keynolds,  plaintiff  in  error,  versus  the  United  States,  de- 
fendant. Reynolds  was  indicted  in  the  District  Court  for  the 
Territory  of  Utah,  charged  with  having  married  one  Amelia 
Jane  Schofield  ;  the  said  defendant  being  then  already  mai/ried 
to  Mary  Ann  Tuddenham.  The  indictment  was  under  Section 
5352  of  the  Revised  Statutes;  which  is  as  follows: 

"  Every  person  having  a  husband  or  wife  living  vs^ho  marries  another, 
whether  married  or  single,  in  a  territory  or  other  place  over  which  the 
United  States  have  exclusive  jurisdiction,  is  guilty  of  bigamy,  and  shall  be 
punished  by  a  fine  of  not  more  than  five  hundred  dollars,  and  by  imprison- 
ment for  a  term  of  not  more  than  five  years  ;  but  this  section  shall  not  ex- 
tend to  any  person  by  reason  of  any  former  marriage,  whose  husband  or 
wife  by  such  marriage  is  absent  for  five  successive  years,  and  is  not  known 
to  such  person  to  be  living  ;  nor  to  any  person  by  reason  of  any  former 
marriage  which  has  been  dissolved  by  the  decree  of  a  competent  court ; 
nor  to  any  person  by  reason  of  any  former  marriage  which  has  been  pro- 
nounced void  by  the  decree  of  a  competent  court,  on*the  ground  of  nullity 
of  the  marriage  contract." 

The  first  question  that  arises  under  the  judgment  of  the  court, 
is  in  respect  to  the  constitutionality  of  the  statute  upon  which  the 
indictment  was  predicated.  All  the  authority  which  Congress 
possesses,  or  may  lawfully  exercise  over  the  Territories,  or  over 
whatever  they  may  include,  either  directly,  or  at  the  hands  of  the 
judiciary,  is  conferred  by  the  third  section  of  the  fourth  article  of 
the  Constitution;  which  is  as  follows: 

•*  The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  ,the  territory  or  other  property  belonging  to  the 
United  tStates." 


The  rules  of  legal  construction  are  universal^  their  purpose  be- 
ing to  direct  in  the  ascertainment  of  the  true  meaning  and  in- 
tent of  the  instrument  to  which  they  are  applied.  There  is  not 
one  class  of  canons  of  interpretation  applicable  to  constitu- 
tional clauses,  another  to  statutes,  and  still  another,  to  private 
instruments;  much  less  is  there  one  class  for  one  section  or  arti- 
cle of  the  Constitution,  and  another  for  another.  Palpably,  by 
the  most  plain  and  obvious  rules  of  construction,  the  clause  here 
considered  has  respect  to  the  proprietary  rights  of  the  Unite<l 
States  and  to  these  alone.  The  inhabitants  of  Utah,  of  Wyom- 
ing or  of  Arizona,  are  not  the  territory  of  the  United  States ; 
they  are  in  no  sense  public  property.  They  are  human  beings, 
entitled,  according  to  the  principles  upon  which  alone,  it  is  af- 
firmed, rightful  government  can  be  founded,  to  life,  liberty  and 
the  pursuit  of  happiness,  in  their  own  way  under  the  rule:  Free- 
dom in  each  to  do  whatever  is  not  inconsistent  with  equal  free- 
dom in  every  other. 

The  statute  in  question  has  nothing  whatever  to  do  with  the 
proprietary  rights  of  the  United  States,  unless  upon  the  presump- 
tion that  the  people  of  the  Territories  are  chattels  of  the  nation, 
that  they  stand  to  the  government  in  the  relation  of  serfs,  hav- 
ing no  rights  which  it  is  under  either  legal  or  moral  obligation  to 
consider,  or  as  apprentices  whose  personalities  are  merged  in  and 
absorbed  by  the  body  politic  to  whicli  belongs  the  unsold  residue 
of  the  land  in  the  region  they  inhabit.  It  is  a  very  violent  pre- 
sumption. There  is  nothing  in  the  physical,  the  moral,  or  the 
intellectual  character,  or  phenomena  of  the  people  of  the  Terri- 
tories by  which  they  may  be  distinguished  from  those  of  the 
States.  There  is  nothing  to  indicate  want  of  competency  in  them 
to  the  regulation  of  their  own  civil  affairs.  It  is  not  to  be  be- 
lieved that,  taking  their  lives  in  their  hands  and  going  forth  into 
the  wilderness,  to  plant  and  build  and  hiy  the  foundations  of 
other  increments  to  this  broad  republic,  tliey,  either  consciously 
or  unconsciously,  divested  themselves  of  those  qualities  which — 
unless  our  entire  system  of  political  ideas  is  a  falsehood,  and 
the  principles  upon  Avhich  it  was  erected  fallacies — are  insepar- 
able from  humanity. 

The  framers  of  the  Constitution  were  wise  men.  They  had 
just  come  out  of  a  struggle  for  civil  freedom,  and  appreciated  the 
force  of  tlie  phrase  "human  liberty,"  more  vividly,  perhaps,  than 
the  statesmen  who  are  their  successors.     Every  word  of  the  in- 


strnment  was  carefully  studied ;  and  especially  those  in  which 
legislative  power  was  bestowed.  They  would  not  have  conferred 
upon  Congress  so  extraordinary,  so  exceptional,  so  unprecedented 
an  authority  as  that  to  determine  the  social  order,  and  fix  the 
domestic  relations  of  the  people  of  the  United  States,  or  any  por- 
tion of  the  same,  and  to  sanction  its  enactments  by  fines  and 
imprisonments,  in  terms  in  which  there  was  a  shadow  of  equivo- 
cality. Admitting  the  possibility  of  the  vestment,  by  a  Constitu- 
tion, of  such  power  in  a  legislative  body,  nothing  but  words 
admitting  of  no  other  interpretation,  and  circumstances  of  the 
most  portentous  description  would  justify  its  exercise.  When 
the  framers  of  the  Constitution  wrote:  "The  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  'property  belonging  to 
the  United  States,"  they  did  not  mean  "  The  Congress  shall 
have  power  to  prescribe  the  social  order  of  the  people  of  the  Terri- 
tories, and  regulate  their  domestic  relations,  and  to  enforce  the 
same  by  appropriate  penalties."  They  knew,  if  the  statesmen  of 
the  present  day  do  not,  that  no  authority  placed  in  the  hands  of 
a  body  liable  to  be  inflamed  by  popular  bigotries,  and  swayed  by 
transient  fanaticisms  could  be  more  perilous,  or  more  apt  to  be 
hastily  and  unjustly  exercised,  than  the  authority  to  dig  beneath 
the  civil  state  and  tamper  with  the  social  basis  upon  which  it  is 
founded ;  and  they  intended  to  confer  no  such  authority. 

There  is  no  ground  for  the  assumption,  that  the  statesmen  of 
the  centennial  are  any  more  sagacious  or  far-seeing  than  the 
statesmen  of  the  revolutionary  period.  There  is  no  warrant 
for  the  conceit  that,  in  the  presence  of  real  or  imaginary,  civil, 
social  or  domestic  exigencies,  the  Constitution  may  be  expanded 
to  mean,  whatever,  for  the  time  being,  a  legislative  majority 
think  it  would  have  meant  if  they  had  been  entrusted  with  the 
making  of  it.  There  is  no  basis  for  the  presumption  that  the  in- 
habitants of  the  Territories  are  less  competent  to  comprehend,  or 
to  make  provision  for  their  own  civil,  social  or  domestic  needs, 
tastes  or  requirements,  than  the  inhabitants  of  the  States,  or  that 
Congress  is  any  wiser  in  respect  to  the  one  than  in  respect  to  the 
other. 

There  was  a  time  when,  under  the  pressure  of  a  ferocious  fan- 
aticism, it  became  fashionable  to  characterize  the  people  of  the 
Territories  by  the  opprobrious  title  of  "  squatters,"  to  regard  them 
in  the  light  of  unlicensed  intruders  into  the  public  domain — not 


6 


only  without  warrant,  but  in  derogation  of  the  common  peace 
and  dignity ;  and,  under  the  name  of  "  squatter  sovereignty,"  to 
reprobate  and  ridicule  the  notion  that  such  vermin,  either  by 
natural  inheritance,  or  as  elements  of  a  republican  common- 
wealth, could  constitute  the  tenants  of  liberties  other  than  such 
as  Congress,  in  its  clemency,  permitted  them  to  enjoy.  In  the 
inflated  party  literature  of  the  period,  they  appeared  as  aliens — 
interlopers,  having  no  right  beyond  that  of  naked  existence,  nor 
freedom  of  action  except  by  the  sufferance  of  federal  authority. 

The  enactment  of  such  statutes  and  the  rendition  of  such 
judgments  as  those  under  consideration,  indicate  but  too  pal- 
pably the  effect  of  this  species  of  literature  upon  the  minds  of 
legislators  and  magit^trates,  as  well  as  of  the  people.  While  copi- 
ously, in  generalities,  by  congressional  orations  and  judicial  opin- 
ions, the  stated  phrases  significant  of  the  natural  prerogatives  of 
man  are  rehearsed,  and  the  doctrine  that  the  federal  government 
is  one  of  enumerated  powers  reiterated,  the  ideas  which  properly 
correspond  with  these  generous  maxims  and  sentiments  seem 
to  have  passed  out  of  the  legislative  and  judicial  memory ;  their 
places  being  practically  occupied  by  the  conceit  that  human  rights 
are  things  of  donation  ;  that  free-agency  is  a  commodity  of  which 
Congress  is  the  creator,  or,  at  least  the  custodian,  to  confer  or  to 
reserve  according  to  its  own  supreme  and  irresponsible  will  and 
pleasure.  This  is  not  the  law  of  the  land.  It  is  not  the  liberty 
to  obtain  which  the  revolution  was  prosecuted.  It  is  not  the 
popular  freedom  which  the  Constitution  was  ordained  to  institu- 
tionize  and  conserve. 

It  does  not  appear,  from  the  opinion  of  the  court,  whether  or 
not  the  question  of  the  constitutionality  of  the  statute  upon 
which  the  indictment  was  predicated,  was  raised  by  the  counsel 
for  the  plaintiff  in  error.  Its  summary  disposal,  by  the  court, 
in  the  following  sentences,  would  seem  to  indicate  otherwise : 

"  In  our  opinion,"  the  Chief  Justice  remarks,  "  the  statute  immediately 
under  consideration  is  within  the  legislative  power  of  Congress.  It  is  con- 
stitutional and  valid  as  prescribing  a  rule  of  action  for  all  those  residing  in 
the  Territories  and  in  all  places  over  which  the  United  States  have  exclu- 
sive control." 

It  is  of  no  importance  whether  or  not  the  question  of  constitu- 
tionality was  raised  by  the  counsel  for  the  plaintiff  in  error.  In 
a  tribunal  of  last  resort,  in  cases  wherein  action  is  predicated  upon 
a  statute,  the  constitutional  question  is  never  absent.     Officially, 


the  court  is  the  embodiment  of  the  Constitution — especially  cre- 
ated to  reflect  its  spirit,  give  to  its  clauses  -just  interpretation, 
and  to  stand  a  sentinel  between  the  people  and  the  law-making 
power,  vigilant  to  ensure  that,  in  its  name,  and  under  pretense 
of  its  authority,  no  fanatical  wrong  shall  be  inflicted,  no  flagrant 
injustice  grow  into  a  precedent,  with  its  manifold  progeny  of 
errors  and  injuries. 

The  question  before  the  court,  it  is  reported,  was  argued  mainly 
upon  the  proposition  that  the  statute  of  18G2,  is  adverse  to  the 
principles  of  religious  liberty  as  laid  down  in  the  following 
words,  in  the  first  constitutional  amendment :  '^  Congress  shall 
make  no  law  respecting  an  establishment  of  religion,  or  prohibit- 
ing the  free  exercise  thereof."  Whether  or  not  there  is  a  relig- 
ious question  involved  in  the  issue  is  immaterial  to  this  inquiry. 

Future  generations  of  lawyers  and  legislators  would,  perhaps, 
have  grown  up  wiser  if  the  Supreme  Court  of  the  United  States 
had  found  it  convenient  to  cite  the  canons  of  interpretation 
whereunder  a  constitutional  clause  which  contemplates  only 
property,  affords  legitimate  sanction  to  a  statute  which  contem- 
plates only  persons.  It  is  no  trivial  problem  to  be  disposed  of 
properly  in  less  than  half  a  dozen  lines  :  by  a  naked  dogma,  with- 
out show  of  reason  or  of  precedent.  It  is  an  important  problem — 
not  only  in  its  present,  but  in  its  possible  other  connections : 
worthy  the  labors  of  the  ablest  intellects,  of  the  profoundest 
philosopher  and  the  most  impartial  publicist ;  and  it  is  equally  an 
unhappy  reflection  upon  the  character  of  the  court,  whether  it 
did  or  did  not  comprehend  its  significance.  Not  so  have  the  pre- 
decessors of  the  present  bench  treated  questions  of  constitutional 
interpretation ;  and  when  a  constitutional  clause  which  contem- 
plates only  public  property  is  held  competent  to  sustain  a  statute 
which  contemplates  only  private  persons,  there  is  a  chasm  to  be 
bridged,  for  the  accomplishment  of  which  enterprise,  no  amount 
of  constructive  ingenuity  can  be  more  than  sufficient. 

It  is  an  universal  rule  of  interpretation,  that  grants  of  power 
are  to  be  construed  strictly.  Every  express  grant  carries  with  it 
the  implication  that  no  more  is  granted  than  is  expressed.  Con- 
cessions of  authority  are  therefore  limitations  of  authority.  They 
mean  that,  before  the  concession  there  was  no  authority ;  from 
which  it  follows  that  there  is  none  beyond  what  is  conceded.  It 
is  not  an  admissible  presumption,  in  the  law,  that  the  authors  of  an 
instrument  left  gaps  which  it  devolves  upon  judges  to  supply.    If 


8 

after  empowering  Congress  to  make  all  needful  rules  and  regula- 
tions in  respect  to  the  public  property,  the  Constitution  had  con- 
tinued ;  "  and  Congress  shall  have  no  power  to  make  rules  and 
regulations  in  respect  to  private  persons,"  the  prohibition  to  in- 
terfere with  the  social  and  domestic  relations  of  the  people  of 
the  Territories,  would,  according  to  accepted  causes  of  construc- 
tion, have  been  no  more  distinct  and  palpable,  no  more  a  thing 
of  which  courts  are  bound  to  take  notice,  than  it  is  at  present. 

The  question  here  to  be  presented  is  one  of  morals.  It  is  the 
most  essential  and  fundamental  of  moral  questions;  that  of  the 
right  of  a  system  of  social  and  domestic  order,  established  by  the 
consent  of  its  factors,  and  in  harmonious  existence,  to  continue 
unsubverted  by  exterior  force,  though  clothed  with  a  color  of  au- 
thority. The  question  includes  an  inquiry  into  the  ultimate  law 
of  human  society;  the  substratum  and  sanction  of  all  laws  of 
convention — statutes  and  constitutions — and  the  basis  of  the 
social,  domestic  and  industrial  economies  ;  in  short,  the  unwrit- 
ten common  law  of  humanity.  There  is  such  a  law.  It  is  the 
law  which  mankind  represent,  not  in  their  doctrines,  theories, 
bigotries  or  sentimentalisms,  but  in  their  lives ;  it  is  the  law  of 
constitution  and  character,  not  of  faith,  dogma  or  opinion. 

Philosophers,  in  all  ages,  have  exercised  their  ingenuities  in  at- 
tempts to  formulate  and  establish  an  absolute  standard  of  moral 
quantities,  and  always  without  success ;  each  fresh  systematizer 
starting  from  the  predicate,  that  all  past  efforts  had  proved  abor- 
tive. It  needs  an  extensive  study  of  systems,  of  so  called  moral 
science,  to  comprehend  the  persistency  of  the  inquest,  and  the 
variety  of  the  conclusions  to  which  different  scholastics  have  ar- 
rived. Thus — for  a  few  examples — Aquinas  made  the  ultimate 
rule  in  morals  to  depend  upon  **  the  nature  of  things ; "  Scotus 
upon  "  the  authority  of  God ; "  Hobbes  upon  "  the  authority  of 
the  state;  "  Puffendorff  upon  "right  reason  among  men;  "  Cum- 
berland upon  "natural  laws  independent  of  experience;"  Cud- 
worth  upon  '*  the  eternal  and  immortal  distinction  of  right  and 
and  wrong  in  the  mind  of  God ;  "  Malebranche  upon  **  the  law  of 
universal  order  as  it  eternally  existed  in  the  Divine  reason ; " 
Shaftesbury  upon  the  "  moral  sense ;  "  WoUaston  upon  "  the 
truth  of  things ;  "  Adam  Clarke  upon  "  the  fitness  of  things ;  " 
Adam  Smith  upon  "  the  principle  of  sympathy ;  "  Hume  upon 
"  utility;  "  Le  Rochefoucauld  upon  "  interest ; "  Helvetius  upon 
"  self  love  ; "  Kant  upon  "  the  highest  happiness ;  "  Fichte  upon 


"the  perpetual  striving  of  the  mind  to  reahze  its  own  nature;  " 
Hegel  upon  "  the  universal  will ; "  Edwards  and  Dwight  upon 
"  benevolence ;  "  Hickok  upon  "  an  imperalive  of  reason,"  and  so 
on  for  quantity. 

The  reason  for  this  diversity  of  opinion  is,  that  no  abstract 
standard  of  collective  morality  is  practicable.  Humanity,  infi- 
nitely various,  is  only  measurable  by  itself.  The  ultimate  rule 
of  the  moral  is  the  actual.  The  relations  into  which  communi- 
ties of  human  beings  spontaneously  settle,  by  virtue  of  their  in- 
trinsic affinities  and  gravities,  and  under  the  impulsion  of  their 
tastes,  desires  and  necessities,  is  the  right  as  regards  such  commu- 
nities ;  and,  being  the  right,  is  their  fundamental  law.  In  other 
words,  the  principle  upon  which  society  organizes  itself  is  the  or- 
ganic principle  of  such  society ;  and,  as  such,  is  paramount  to 
every  rule  of  convention  or  enactment. 

Society  is  the  spontaneous  expression  by  the  people  of  their 
common  character  in  relations.  It  obtains,  wherever  there  is  hu- 
manity, its  aspects  determined  by  the  common  disposition.  It 
comes  into  being  unconventionally,  and  can  only  be  dissolved, 
legitimately,  by  natural  decay,  illegitimately,  by  the  intrusion  of 
exterior  force.  It  is  the  basis  upon  which  civil  government  is 
founded ;  and  to  protect  its  order,  minister  to  its  needs  and  inter- 
pret and  enforce  its  relations,  are  the  conditions  upon  which  the 
title  of  government  to  maintain  an  existence  depends.  Such  re- 
lations are,  therefore,  the  embodiments  of  its  supreme  law. 
Hence,  whether  or  not,  an  abstract  standard  for  the  admeasure- 
ment of  moral  qualities  is,  in  the  nature  of  things,  possible,  with 
such  appraisals  government  can  have  no  concern ;  for  it  is  not  in 
order  for  the  creature  to  sit  in  judgment  upon  the  creator. 

Government  is  the  conventional  expression  of  the  civil  charac- 
ter of  a  people  in  institutes — organic  and  statutory— and  in  ad- 
ministration. In  respect  to  authenticity,  it  differs  from  society  in 
this :  that  the  latter  is  the  voice  of  the  inherent  qualities — the 
instincts — of  the  people,  which  are  constant ;  the  former  of  their 
opinions,  which  are  variable.  Mores — modes,  manners,  morals — 
the  words  have  all  the  same  signification — are  manifestations  of 
the  fixed  and  durable ;  as,  on  the  other  hand,  constitutions,  stat- 
utes, precedents,  decrees  and  resolutions,  are  of  the  fleeting  and 
temporary.  The  former  are  natural  facts — the  out-croppings  of 
underlying  truth :  the  latter  artificial  contrivances ;  like  their 
authors,  transitory.     The  dynamics  of  the  moral  are  the  ana- 


io 


logiies  of  those  of  the  material  universe.  As  no  stream  can  rise 
to  a  level  higher  than  that  of  the  fountain  from  which  it  flows, 
so  no  government  can  attain  to  an  eminence  in  virtue  superior  to 
that  occupied  by  its  creators ;  and  every  claim  to  such  transcend- 
ence only  testifies  how  inadequately  its  ministers  comprehend  its 
principles  and  purposes,  and  how  unfit  they  are  to  be  entrusted 
with  its  authorities. 

Even  if  it  were,  in  the  nature  of  things  possible  to  endow  a 
government  with  power  to  prescribe  to  its  subjects  the  terms  up- 
on which  to  order  their  social  and  domestic  relations,  and  to 
punish  them  in  case  of  recusancy,  every  principle  which  is  funda- 
mental in  a  popular  government  would  insist  that  such  power 
should  be  exercised  only  in  conformity  with  the  will  of  the  com- 
ponents of  the  body  politic  to  be  affected  by  such  prescription. 
Any  other  rule  than  this  is  a  rule  of  despotism.  If  Congress 
had  the  authority  to  enact  statutes  regulative  of  the  personal 
relations  of  the  people  of  the  Territories,  and  should  exercise 
such  authority  in  any  other  way  or  to  any  other  extent,  than  the 
people  of  the  Territories  would  legislate  for  themselves,  it  would 
commit  an  act  of  absolutism  more  wild  and  mischievous  than, 
upon  their  loyal  subjects,  any  of  those  "  effete  dynasties  of  the 
old  world,"  which  are  permitted  to  figure  so  extensively  in  the 
United  States,  on  the  day  of  the  national  harlequinade,  ever  at- 
tempted. There  could  be  no  course  of  reasoning  presented,  or 
line  of  precedents  consistent  with  the  principles  of  human  right 
adduced,  by  which  such  an  act  could  be  justified  or  even  excused. 

But  there  is  no  such  power.  There  can  be  none.  No  govern- 
ment ever  possessed  it.  No  people  ever  conferred  it  upon  their 
government.  No  government,  so  far  as  history  records,  but  that  of 
the  United  States  ever  attempted  its  exercise.  It  is  altogether  with- 
out a  precedent  in  the  annals  even  of  despotism.  Nowhere  but 
upon  this  continent,  and  here,  under  the  pressure  of  a  fanaticism 
that  is  as  ignorant  as  it  is  conceited,  and  as  irrational  as  it  is  in- 
exorable, has  the  idea  been  conceived  that  it  is  the  purpose  and 
the  duty  of  government  to  burrow  beneath  its  own  foundations 
and  to  disintegrate  and  re-order  the  basis  upon  which  it  was  con- 
structed. The  dynamics  of  the  moral  are  the  analogues  of  those 
of  the  material  universe.  In  the  latter,  the  result  would  be  the 
destruction  of  the  edifice;  can  it  be  anything  less  than  anarchy 
in  the  former  ? 

The  social  condition  is  the  common  law  of  the  land;  a  law 
which  antedates  and  dominates  every  law  of  convention.     It  is 


11 


always  present  in  all  the  tribunals  where  justice  purports  to  be 
administered.  Here  was  the  problem  which  it  devolved  upon  the 
supreme  judiciary  of  the  land  to  consider :  A  statute  without  a 
single  example,  purporting  to  outlaw  the  domestic  relations  of  a 
people  and  to  reprobate  all  who  had  entered  into  them;  pro- 
fessedly deriving  its  sanction  from  a  constitutional  clause  with 
which  it  had  no  congruity,  opening  a  field  of  legislation  and  cor- 
respondingly of  judicial  service  hitherto  unoccupied;  and  many 
thousands  of  loyal  citizens  Avhose  nuptial  bonds,  personal  liber- 
ties, domestic  rights,  legitimacy  and  title  to  inherit,  depended 
upon  the  decision.  It  was  a  problem  requiring  for  its  proper  solu- 
tion an  analysis  of  the  most  fundamental  of  all  laws — of  the 
principles  of  social  order,  the  source  and  fountain  from  which 
the  government  derives  its  existence  and  authority.  Upon  the 
one  hand  was  the  social  fact,  which  is  and  forever  must  remain 
the  law ;  upon  the  other  a  statute  having  upon  its  face  a  false- 
hood and,  in  its  substance  a  despotism.  How  will  the  court  de- 
cide ?  How  did  it  decide  ?  Let  it  not  be  said  that  the  magis- 
trates of  the  judicature  of  last  resort  in  this  great  republic,  are 
swayed  from,  their  equilibriums  by  the  fantastical  clamors  of  silly 
women ;  or  that  they  permit  their  reasons  to  be  overcome  by 
communistic  harangues,  delivered  by  well-dressed  visionaries  in 
lecture  halls,  or  spouted  by  vulgar  ruffians  from  the  steps  of  pub- 
lic edifices  ;  or  that  they  accept  the  platform  of  some  party  as  an 
authority  superior  to  law  or  reason.  But  where,  unless  from  one 
or  another  of  these  sources,  they  obtained  the  instructions  upon 
which  their  four  lines  of  dictum  were  predicated,  it  is  hard  to. 
conceive. 

Special  customs,  in  matters  of  liuman  intercourse ;  the  customs 
of  cities,  boroughs,  districts  and  villages,  when  they  have  become 
fixed  by  time,  have  always  been  respected  by  courts  as  the  law  of 
the  region  in  which  they  obtain,  whether  or  not  there  are  general 
statutes  of  the  realm  or  doctrines  of  the  common  law  with  which 
they  are  in  conformity.  The  term  "immemorial  custom,"  is 
applied  to  that  which,  when  shown  to  exist,  is,  in  respect  to 
the  subject  matter,  the  highest  law.  In  old  countries,  where  tlie 
origin  of  the  custom,  as  well  as  of  the  people,  is  beyond  the  mem- 
ory of  the  living — admitting  of  the  presumption  that  the  two  had 
a  common  beginning — it  is  not,  practically,  incorrect.  The  rule 
is  founded  upon  the  idea  that  the  custom  is  expository  of  the 
character  of  the  inhabitancy ;  of  which  immemoriality  is  one  of 


the  evidences.  In  a  new  country,  as  the  United  States,  there  are 
no  customs  of  which  it  may,  in  strictness  be  said  "  the  memory 
of  man  runneth  not  to  the  contrary,"  and,  hence,  here,  the  term 
is  not  a  complete  expression  of  the  principle.  Every  custom 
which  is  coeval  with  the  community  in  which  it  prevails  complies 
with  the  spirit  of  the  rule  under  which  immemorial  customs  have, 
in  all  ages,  been  held  as  the  law. 

The  custom  of  plural  marriages — polygamy — had  its  beginning 
with  the  birth  of  the  community  within  which  it  prevails.  It  is 
therefore,  to  every  legal  intent  and  purpose,  an  "  immemorial  cus- 
tom." It  is  the  fundamental  law  of  that  community,  and,  as  such 
is  entitled  to  be  judicially  regarded.  Whether  or  not  the  point 
was  presented  in  this  form,  in  the  arguments  of  the  counsel,  does 
not  appear  from  the  delivered  opinion.  It  may  be  said  that,  in 
order  to  take  advantage  of  the  local  custom,  it  is  essential  that  it 
be  specially  pleaded.  This,  in  civil  cases,  at  nisiprius,  is  true  in 
general.  But  in  the  case  before  the  court,  it  was  the  custom  it- 
self, which  constituted  the  basis  of  the  litigation.  It  was  a  crim- 
inal proceeding,  in  which  the  question  to  be  determined  was :  Has 
this  particular  custom  a  right  to  exist  ?  The  court  knew  what  it 
was  called  upon  to  decide,  and  what  it  was  deciding.  It  was  not 
ignorant  of  the  fact  that,  in  determining  the  case  of  the  plaintiff 
in  error,  it  was  dictating  the  future  of  thousands  of  men,  women 
and  children  ;  decreeing  whether  or  not,  in  legal  contemplation, 
in  time  to  come,  the  men  of  a  great  and  orderly  community,  were 
to  be  counted  criminal  profligates,  the  women  criminal  prostitutes 
and  the  children  nameless  illegitimates. 

The  court  had  the  question  before  it.  Substantially,  it  was  the 
question  it  decided.  It  was  not  an  unimportant  question.  The 
difference  between  human  happiness  and  human  misery  is  a  mo- 
mentous difference — a  difference  as  wide  as  the  human  mind  has 
the  capacity  to  conceive.  The  annals  of  litigation,  throughout  all 
the  ages,  may  be  searched  in  vain  for  another  instance  in  which 
the  alternative  between  happiness  and  misery,  to  so  great  a  mul- 
titude of  human  beings,  was  immediately  involved. 

Between  official  and  individual  knowledge  there  is  a  debatable 
laud  free  to  judicial  discretion.  A  court  may  know  much  that  it 
does  not  know,  and  not  know  much  that  it  knows.  The  court, 
in  the  case  in  question,  may  have  preferred  to  be  ignorant  of  the 
fact  that  the  plaintiff  in  error  was  one  of  a  large  community,  the 
legal  status  of  whose  members  would  be  determined  by  the  con- 


13 

elusion  to  which  it  should  arrive.  On  the  other  hand,  inferring 
from  the  tenor  of  the  decision,  the  judges  were  not,  by  any  means, 
ignorant  of — what  outside  of  judicial  quarters,  might  pass  for  a 
related  circumstance — that,  infesting  a  region  somewhere  between 
the  Mississippi  and  the  Pacific,  there  is  a  band  of  miscreants, 
wicked  beyond  all  who  dwell  elsewhere  within  the  boundaries  of 
Christendom.  Also  that  these  interlopers,  squatters  upon  the 
public  domain — which  they  have  the  insolence  to  turn  into  fields 
and  gardens,  and  to  satisfy  their  unhallowed  appetites  with  the 
produce  of  the  same — have  a  religion,  which  is  neither  Method- 
ism nor  Presbyterianism,  nor  Episcopalianism,  nor  Baptism,  nor 
CongregationaHsm,  nor  Lutheranism,  nor  Quakerism,  nor  any 
other  of  the  isms  or  sub-isms  which  prevail  in  the  other  States  and 
Territories;  and  which,  therefore,  is  beyond  description  corrupt, 
ungodly  and  infamous,  and  must  have  been  adopted  through  the 
direct  instigation  of  the  arch-enemy  of  mankind.  Furthermore 
that  these  reprobates,  in  order  that  they  might  practice  their  un- 
holy rites,  without  interruption  by  the  good  and  pious — who  con- 
stitute the  remainder  of  the  citizens  of  the  republic — retired  into 
the  wilderness,  a  thousand  miles  from  the  abodes  of  civilization 
and  Christianity,  and  thereby  became  obnoxious,  of  evil  example 
and  a  pregnant  source  of  infidelity,  misbelief  and  corruption  to 
the  people  at  large  and  to  christians  in  particular ;  by  these  means 
implanting  and  instituting  a  national  sin  to  the  intense  disgust 
of  the  Almighty,  who  may,  any  day,  be  expected,  in  punishment 
thereof,  to  descend  in  person,  without  notice,  to  wipe  out  and 
eradicate,  without  discrimination,  old  and  young,  righteous  and 
wicked,  not  sparing  even  Congress,  the  President  nor  the  Judi- 
ciary. 

To  fill  to  overflowing  the  cup  of  their  abominations,  these  re- 
probates, it  is  understood,  have  malignantly  taken  to  imitating 
the  example  of  holy  Jacob  and  David  and  Solomon,  and  multi- 
plying their  marriages.  This  proves  them — as  it  did  the  said 
holy  Jacob  and  David  and  Solomon  and  the  saints  and  patriarchs 
of  the  elder  dispensation — beyond  hope  vile  and  incorrigible. 
The  notion — which  is  one  of  theirs — that  every  woman  is  en- 
titled to  the  privilege  of  bearing  legitimate  children,  is  proof  of 
their  inherent  licentiousness.  The  practice  which  they  pursue  of 
absorbing  all  the  females  of  the  community,  so  that  none  shall  be 
left  over  for  prostitution,  demonstrates  how  utterly  they  are  de- 
praved.    The  idea  wiiich  they  entertain,  that  the  fraction  of  a 


14 

husband  with  a  home,  is  more  wholesome  for  a  woman  than 
neither  husband  nor  home,  shows  how  destitute  they  are  of  all 
the  finer  feelings  of  humanity. 

It  is  not  to  be  wondered  at,  considering  the  circumstances,  that 
every  sentimental  virgin  of  mature  age  in  the  land,  no  matter 
how  distant  from  the  scene  of  operations,  feels  her  own  virtue  im- 
periled so  long  as  such  depravity  is  allowed  to  go  unexterminated. 
It  is  not  surprising  that  strait-laced  members  of  Congress,  who,  at 
once,  console  themselves  for  the  absence  of  wives  left  at  home 
and  set  a  laudable  example  of  economy  to  their  children,  by  hav- 
ing a  mistress,  who  keeps  herself,  in  each  of  the  departments^ 
should  feel  the  urgent  need  of  doing  something  signal,  as  well 
to  drag  the  nation  from  the  verge  of  the  abyss  into  which  it  is 
preparing  to  plunge,  as  to  demonstrate  their  own  domestic  loyal- 
ty, and  their  indelible  hatred  of  every  form  of  luxurious  indul- 
gence. The  people  of  the  United  States  do  not  appreciate  how 
highly  rectified  their  legislators  are — how  unsullied  in  mind  and 
irreproachable  in  conduct ;  and  it  is  well,  perhaps,  that  they  do 
not;  for,  if  by  any  means,  a  view  of  such  quantities  of  purity 
should  come  upon  them  unawares,  a  hasty  demand  for  the  services 
of  a  legion  of  coroners  might  be  the  result. 

A  relic  of  barbarism  at  a  distance,  and  of  which  his  sole  knowl- 
edge is  obtained  through  exaggerated  rumors  and  statements 
which,  coolly  examined,  would  disprove  themselves,  is  enough  to 
stir  to  its  lowest  depths  the  soul  of  a  philanthropist.  The  Mor- 
mons of  Utah  have  had  against  them  two  uneasy  classes,  which 
do  not  in  general  co-operate ;  the  orthodox  pietistics  to  wit,  and 
the  unorthodox  humanitarians.  They  are  heathens  to  the  one 
and  to  the  other  barbarians ;  and  as  the  Mormons  are  obdurate 
in  their  sins,  the  only  reformatory  process  equal  to  the  exigency  is 
their  eradication.  The  members  of  these  uneasy  classes  have  votes; 
and,  as  beech-nuts  to  a  bear,  so  votes  to  a  demagogue.  These 
aye  the  instrumentalities  through  which  clamors  are  raised  ;  that 
which  passes  for  public  sentiment  manufactured;  fanaticisms  in- 
flamed, and  unjust  and  barbarous  statutes,  creating  artificial 
crimes  and  menacing  their  commission  with  savage  penalties,  en- 
acted. 

Without  doubt  the  Judges  of  the  Supreme  Court  had  been 
properly  informed  of  the  existence  and  the  enormities  of  this 
nest  of  reprobates ;  how  the  moral  sense  of  the  good  people  was 
outraged  by  their  presence  ;  what  a  plague-spot  they  were  upon 


15 

the  land ;  how  all  Christendom  held  its  nose  when  they  were 
mentioned,  and  how  God  was  getting  out  of  patience  at  the  slow 
progress  that  was  making  in  their  extermination.  Without 
doubt  they  felt  a  profound  sense  of  the  obligations  they  were 
under  ;  not  to  human  right  or  the  principles  of  universal  justice  ; 
not  to  the  body  corporate  and  politic  known  as  the  United  States 
of  America;  not  to  the  plaintiff  in  error  or  to  those  in  like  man- 
ner to  be  aifected ;  not  to  themselves  as  individuals,  whose  names 
might  be  honored  or  disparaged  in  the  future  accordingly  as  their 
acts,  tried  by  the  talisman  of  time,  should  be  judged  wise  or 
otherwise;  but  to  popular  sentiment.  Congress  had  done  its 
duty — placing  the  obnoxious  under  the  ban  of  a  common  out-* 
lawry;  the  President  had  nobly  responded  to  the  enlightened 
spirit  of  the  times — appointing  judges  warranted  to  be  a  terror  to 
the  evil-doers  ;  the  courts  below  had  executed  their  mission  with 
exemplary  faithfulness — so  ruling  as  to  ensure  conviction  to  the 
accused,  and  nothing  remained  but  for  the  tribunal  of  last  resort 
to  manifest  like  allegiance  to  the  laws  of  propriety ;  like  respect 
for  the  amenities  of  civilization ;  like  reverence  for  the  Christian 
faith,  and  like  adequacy  to  the  situation,  by  crowning  the  work 
which  the  others  had  so  felicitously  begun.  Did  it  prove  recreant 
to  the  trust  which  had  been  reposed  in  its  man-millinerism  ? 
Perish  the  unworthy  suspicion !  Salus  populi  est  suprema  lex. 
Are  human  rights  or  the  principles  of  justice,  or  the  maxims  of 
jurisprudence,  or  the  relations  of  society,  or  immemorial  usages 
to  be  allowed  to  stand  as  impediments  where  a  moral  pestilence 
prevails,  aplague-sjjot  which  threatens  universal  contamination  is 
to  be  cauterized,  and  a  crying  national  sin  eradicated  ?  The 
court  did  not  falter — it  did  not  even  hesitate.  Like  a  headsman 
whose  daily  use  is  in  capital  operations,  it  applied  the  white-hot 
branding-iron  with  a  coolness  which,  in  contrast  with  the  calidity 
of  the  implement,  was  truly  admirable. 

In  the  foregoing,  it  is  alleged  that  the  Act  of  Congress  of  1862 
carries  a  falsehood  upon  its  face.  This  needs  an  explanation,  to 
which  a  few  sentences  will  have  to  be  devoted.  Marriage  is  a  do- 
mestic relation  entered  into  by  man  and  woman,  by  private  con 
tract,  which,  in  Protestant  countries,  is  called  "  civil,"  to  distin- 
guish it  from  the  mode  of  its  completion  in  Catholic  countries, 
where  it  is  regarded  as  a  sacrament.  The  essence  of  the  relation 
is  its  contract  quality.  Any  two  persons  of  different  sexes,  of 
suitable  age  and  sound  mind,  may  thus  contract,  and  the  agree- 


16 

menfc  is  binding,  according  to  its  terms,  upon  the  parties.  The 
terms  are  fixed  by  the  custom  of  the  society  in  which  the  parties 
are  included,  and  such  custom  is  the  law.  In  the  United  States 
and  throughout  Christendom,  custom  has  affixed  to  the  nuptial 
compact  a  life  duration,  and  upon  this  basis  it  is  legislatively  pro- 
tected and  judicially  defined  and  enforced.  Except  in  the  case 
of  a  single  community,  custom,  in  the  United  States,  prescribes 
one  wife  at  a  time  as  the  proper  domestic  allotment ;  and,  ac- 
cordingly, where  such  is  the  rule,  the  marital  covenant  is  monog- 
amous in  its  conditions.  The  husband  promises  to  marry  no  other 
woman,  the  wife,  to  marry  no  other  man ;  and  this  agreement  is 
enforced  under  statutes  which  provide  to  annul  fraudulent  after- 
marriages,  and  to  punish  the  perfidious  party  for  the  commission 
of  a  crime,  for  centuries  known  to  criminal  jurisprudence  as 
**  Bigamy." 

Bigamy  is  a  fraudulent  after-marriage  by  a  person  having  a 
wife  or  husband  living  and  undivorced.  The  essence  of  the 
crime  is  wilful  breach  of  an  express  contract,  and  fraud  committed 
upon  one  or  more  innocent  parties.  It  is  a  crime  of  perfidy,  and, 
as  such,  is  properly  regarded  with  dread,  and  its  perpetrator  with 
repugnance.  Between  this  felony  and  the  polygamy  in  Utah,  ex- 
cept in  the  naked  fact  of  pluralism,  there  is  not  the  remotest  re- 
semblance; and  yet,  in  the  act  of  Congress  of  1862,  the  two  are 
dishonestly  confounded.     The  words  of  the  act  are  as  follows  : 

"  Every  person  having  a  husband  or  wife  living  who  marries  another, 
whether  married  or  single,  in  any  Territory  or  other  place  over  which  the 
United  States  have  jurisdiction,  is  guilty  of  bigamy." 

It  will  be  seen  that  the  act  describes  polygamy,  gives  it  a 
name  which,  for  centuries,  the  criminal  law  has  specifically  affixed 
to  an  infamous  offense  to  which  it  bears  no  likeness,  and,  as  such 
menaces  it  with  severe  and  disgraceful  penalties.  And,  strange  as 
it  may  seem,  this  misnomer — which  would  be  ludicrous  if  it  were 
inadvertent,  but,  being  intentional,  is  cruel — is  adopted  by  the 
Supreme  Court  of  the  United  States,  in  a  laborious  attempt  to 
find  a  sanction  for  the  anomaly  it  seeks  to  establish. 

The  Judges  of  the  Supreme  Court  of  the  United  States  are 
lawyers.  All  of  them  have  the  experience  of  years  of  practice  at 
the  bar,  and  several  of  them  upon  the  bench  before  they  attained 
to  their  present  positions;  and,  without  doubt  are  more  or  less 
conversant  with  criminal  forms  and  definitions.  They  could  not 
otherwise  than  have  known  that  bigamy  was  a  crime  at  common 


IT 

law  before  it  became  a  statutory  offense  ;  that  its  characteristic 
quality  is  the  fraud  in  which  it  is  committed  ;  that  neither  in 
England  nor  in  the  United  States,  have  bigamy  and  polygamy 
been  legally  regarded  as  allied  acts;  and  that  in  the  few  States  and 
Territories  where  the  latter  is  defined  and  forbidden,  it  is  treated 
as  a  misdemeanor  distinct  from  the  former ;  and  yet  there  is 
throughout  the  opinion  of  the  court  a  visibly  painful  effort  to 
make  it  appear  that  the  two  are  identical.  Thus  the  court  re- 
marks : 

"  From  that  day  " — 1785 — "  to  this,  we  think  it  may  safely  be  said  there 
never  has  been  a  time  in  any  State  of  the  Union  where  polygamy  has  not 
been  an  offense  against  society,  cognizable  by  the  civil  courts,  and  punisha- 
ble with  more  or  less  severity." 

This  is  simply  untrue.  In  not  many  of  the  States  has  polygamy 
been  forbidden  by  statute ;  and  in  the  most,  if  not  in  all,  the 
punishable  offenses  are  defined  and  the  penalties  prescribed  by 
acts  of  the  Legislature.  In  all  the  States  and  Territories  bigamy, 
and,  in  several  of  them,  by  recent  acts,  polygamy  is  prohibited.  It 
is  not  agreeable  to  witness  the  supreme  judiciary  of  the  Kepublic 
laying  down  the  doctrine  that  it  is  one  of  the  functions  of  civil 
government  to  prescribe  the  conditions  upon  which  domestic  and 
social  order  are  to  be  maintained ;  for  that  is  proof  of  ignorance 
of  the  principles  upon  which  civil  governments  are  founded  It 
is  still  less  agreeable  to  witness  the  same  tribunal  laboring  to  erect 
a  criminal  common  law  upon  the  basis  of  the  acts  of  local  legisla. 
tures;  and  this  especially  when  such  acts  are  the  creatures  of  the 
imagination;  for  that  is  an  indication  of  something  more  to  be 
deprecated  than  ignorance. 

**  Marriage,"  says  the  court,  *^  while,  from  its  very  nature,  a 
sacred  obligation,  is  nevertheless,  in  most  civilized  nations,  a  civil 
contract,  and  usually  regulated  by  law."  AVhatever  else  it  may 
be,  marriage  is  a  private  contract,  the  legal  status  of  which  is  not 
affected  by  sacred  or  sentimental  considerations ;  nor  do  the  ethi- 
cal principles  which  apply  to  it  differ  from  those  which  are  ap- 
plicable to  other  compacts  upon  mutual  considerations.  If  the 
parties  are  of  the  proper  sexes,  the  proper  age,  of  sound  mind 
and  contracting  disposition,  the  agreement  is  interpretable  and — 
if  untainted  by  fraud  or  deceit — binding  in  accordance  with  its 
conditions.  One  of  these  conditions  usually  is,  that  the  parties 
shall  live  and  cohabit  together,  so  long  as  they  both  survive. 

The  right  and  the  custom  of  contract  antedates  government, 
and  is  more  authentic.     A   fundamental  civil  maxim   forbids 


18 

government  to  do  ought  to  impair  the  obligations  of  contracts. 
Statutes  by  which  such  obligations  are  enfeebled  are  pronounced 
invalid.  The  principle  upoli  which  the  maxim  is  based  includes 
the  denial  to  legislatures  of  authority  to  do  ought  to  diminish 
the  free  agency  of  the  citizen  in  contracting.  Therefore,  by  the 
same  rule,  statutes  whose  effect  is  to  impair  or  diminish  such  free 
agency  are  unlawful.  To  the  operation  of  this  principle,  there 
can  be  no  valid  reason  why  a  marriage  contract,  untainted  by 
fraud  and  entered  into  in  conformity  with  the  custom  of  the  com- 
munity wherein  it  is  executed,  should  be  held  to  constitute  an  ex- 
ception. If  such  contract  is,  in  any  sense  the  basis  of  a  *'  sacred 
obligation,"  so  much  the  more  reason  why,  especially  after  it  has 
been  consummated  by  cohabitation,  secular  hands  should  not  be 
laid  upon  it  to  work  its  outlawry  and  dissolution.  There  are 
those  Avho  profess  to  have  penetrated  deeper  than  ordinary  mor- 
tals into  the  counsels  of  heaven,  and  to  have  obtained  clearer 
views  of  the  divine  will  in  respect  to  the  duties  and  relations  of 
life;  but  they  are  persons  whose  suggestions  it  is  not  safe  for 
such  as  are  appointed  to  administer  justice  to  accept. 

And  here — assuming  that  the  Bible  is  the  revealed  word  of  God, 
given  to  mankind  for  their  instruction,  by  precept  and  by  exam- 
ple— it  is  proper  to  inquire  into  its  teachings  in  respect  to  mar- 
riage. "  The  chosen  people  of  God,"  as  the  Bible  relates,  prac- 
tised polygamy  from  the  days  of  the  founder  of  the  race,  Abra- 
ham— who  was  a  polygamist ;  as  they  do  to  this  day,  in  countries 
where  polygamy  is  customary.  Polygamy  is  recognized  as  lawful 
by  the  Levitical  precepts.  The  example  of  the  rulers  of  the  land 
and  the  leaders  of  society  was  in  its  favor,  and  throughout  the 
Old  Testament,  there  is  not  a  word  in  its  condemnation  or  to  its 
disparagement.  In  the  Pauline  Epistles  of  tlie  New,  it  appears 
that  the  author — who  believed  the  end  of  the  world  to  be  near  at 
hand — was  opposed  to  marriages;  and  except  in  exceptional 
cases,  advised  the  believers  against  them.  As  a  measure  of  pre- 
caution, however,  he  was  of  the  opinion  that  a  presbyter,  or 
teacher  of  religion,  should  be  a  married  man ;  or,  as  the  not 
altogether  candid  translation  expresses  it,  *'  the  husband  of  one 
wife.'^  It  was,  at  the  most,  a  special  and  limited  dispensation 
in  favor  of  the  clergy — the  reasons  for  which,  in  the  light  of 
modern  experience,  are  too  obvious  to  need  explanation.  By 
means  of  free  interpretation  and  abundant  inference,  neverthe- 
less, these  five  words  have  been  discovered,  by  theoretical  ecclesi- 


19 


astics  and  sentimental  millenarians,  to  embody  a  vast  code  of 
doctrine,  instruction  and  commandment  against  marital  plural- 
ism ;  wherein  the  extremest  wrath  of  God  is  menaced  again&t  of- 
fenders, and  the  direst  judgments  suspended  over  those  nations 
wherein  it  is  permitted.  This  is  simply  absurd.  And  yet  absurd 
as  it  is,  it  has  served  as  the  basis  of  a  fiery  fanaticism,  a  violent 
agitation  and  a  bitter  persecution,  under  the  influence  of  which, 
a  statute  has  been  passed  which,  for  heartless  malignity,  may 
search  the  books  of  the  law  in  vain  for  a  parallel. 

This,  however,  is  not  all  that  the  New  Testament  contains 
touching  the  marriage  relation.  Again  and  again  in  the  Gospels 
— and  this,  be  it  remembered,  in  a  polygamous  country — is  the 
permanency  and  the  inviolability  of  the  marriage  relation  af- 
firmed. For  one  cause,  and  for  one  cause  alone,  could  it  be  right- 
fully abrogated.  This,  if  the  author  of  Christianity — "  the  Head 
of  the  Church" — is  to  be  regarded  as  its  rightful  law-giver,  is  the 
fundamental  law  of  Christendom  upon  the  subject.  A  marriage 
contract,  a  polygamous  marriage  contract,  except  upon  a  single 
ground — the  adultery  of  the  wife — is  pronounced  indissoluble  by 
human  agency ;  and  this  in  terms  so  direct  and  distinct  that  to  mis- 
take their  meaning  or  to  break  their  force  by  interpretation  is  im- 
possible. Why  did  not  the  Supreme  Court  of  the  United  States, 
while  pronouncing  "  marriage  from  its  very  nature  a  sacred  obli- 
gation," take  a  moment  to  consider  upon  the  conditions  to  a  sa- 
cred obligation  ?  Is  the  obligation  of  marriage  only  sacred  as  be- 
tween the  parties  to  the  contract,  while  to  legislative  bodies  and 
judicial  courts,  it  is  so  profane  and  secular  that,  by  a  single 
flourish  of  the  pen,  and  without  an  inquiry  into  the  character  or 
the  will  of  their  parties,  thousands  of  marriage  contracts  may  be 
annulled,  and  such  parties  outlawed  and  punished  for  having  en- 
tered into  them  ? 

The  decision  of  the  court  is  broader  in  effect  than,  upon  its  face 
it  appears.  It  is  a  rule  of  the  law  that  power  over  a  particular 
subject  matter,  once  vested  in  a  legislative  body,  is  plenary,  in  re- 
spect to  such  subject  matter.  The  authority  to  enact  statutes  to 
forbid  plural  marriages  and  to  punish  the  parties  to  them,  implies 
the  authority  to  provide  for  the  prosecution  and  punishment  of 
all  who,  whenever  married,  continue  to  live  in  pluralism ;  and 
thus,  by  a  single  penal  enactment,  a  whole  loyal  people,  living  in 
content  and  harmony,  may  be  transformed  into  felons,  their  do- 
mesticities dismembered,  a  horde  of  helpless  women  turned  home- 


20 

lees  upon  the  world,  and  a  mnltifcude  of  unoffending  children  bas- 
tardized. Nor  are  the  fanatical  men  and  silly  women,  who  gen- 
erate the  force  which  manifests  itself  through  such  statutes  and 
such  decisions,  content  with  what  they  have  obtained ;  and  Con- 
gress is  flooded  with  petitions  praying  for  such  further  legislation 
and  more  extreme  measures,  as  that  the  representatives  of  the 
great  national  sin  and  last  relic  of  barbarism  shall  have  no  rest- 
ing place  but  in  houses  of  correction,  and  thus  the  plague  spot 
be  removed  from  the  land.  This  consequence  was  before  the 
court  when  it  rendered  its  decision.  The  court  could  not  other- 
wise than  have  been  aware  of  the  legal  effects  of  the  decree  it  pro- 
nounced. For  all  the  untold  and  indescribable  misery  that  has  re- 
sulted and  that  may  result  from  past  and  future  legislation  upon 
the  subject,  it  is  responsibly.  Placed  where  it  is,  to  interpose  a 
firm  and  inflexible  impediment  to  tides  of  popular  passion  and 
floods  of  sectarian  and  sentimental  fanaticism,  it  has  given  way 
at  the  very  time  and  the  very  spot  when  and  where  it  should  have 
been  most  steadfast  and  resolute;  and  has,  thereby,  not  only 
missed  a  supreme  opportunity,  but  has  placed  upon  record  an  en- 
during testimonial  of  its  inadequacy  to  the  obligations  of  the  trust 
it  holds  and  the  seat  it  occupies. 

In  one  sense,  at  least,  the  marriage  bond  includes  a  sacred  ob- 
hgation.  It  is  an  alliance,  the  status  quo  ante  of  which  cannot 
be  restored  by  its  annulment.  This  may  be  of  little  moment  to 
the  male,  but  it  is  of  incalculable  importance  to  the  female 
party.  She  is  made  homeless.  She  is  an  outcast  in  the  eye  of 
the  law  which  has  made  her  a  criminal ;  and  in  the  estimate  of 
society,  is  depreciated.  If  there  can  be  a  duty  resting  upon  a 
court  of  justice  more  sacred  than  another,  it  is  the  duty  to  inter- 
pose and  guard  the  helpless  against  the  machinations  of  the  ma- 
lignant. 

It  may  be  said  that  courts,  in  laying  down  the  law,  are  not 
bound  to  consider  the  consequences  of  their  decisions.  This  may, 
in  a  sense,  be  true ;  but  it  is  true  also  that  courts,  in  determining 
how  justice  should  be  administered,  will,  if  they  do  their  duty, 
consider  the  consequences  of  a  decision  one  way  or  another,  as  a 
means  of  finding  out  what  is  just.  It  is  proof  of  the  wrongful- 
ness of  a  judgment  when  its  effect  is  to  inflict  a  great  and  mani- 
fold general  injury.  The  fact  that  a  rule  works  oppression  is 
proof  that  it  is  wrong ;  proof  that  an  element  has  been  omitted 
from  the  analysis,  by  which  the  result  is  depraved.     The  court 


had  eyes  enough  to  see  one  side  of  the  situation,  if  it  had  not 
enough  to  see  the  other.  It  had  no  difficulty  in  discerning  the 
wants  of  those  whose  interest  in  the  matter  was  purely  fantastical 
and  visionary  ;  it  failed  altogether  to  perceive  the  needs  of  those 
whose  interests  were  vital  and  momentous.  Its  whole  body  was 
full  of  light,  and  warmed  with  sympathy  toward  such  as  were 
not,  it  was  shrouded  in  darkness  and  chilled  with  austerity  toward 
those  who  were  to  be  ground  to  powder  and  trodden  into  the 
earth,  as  the  consequence  of  its  decree.  If  its  mission  had  been 
to  pronounce  upon  the  fate  of  a  horde  of  rats,  instead  of  that 
of  a  colony  of  human  beings,  it  could  not  have  manifested  more 
tenderness  in  behalf  of  those  with  whom  its  sensibilities  were  in 
unison,  nor  more  indifference  to  the  sufferings  of  those  whom  it 
delivered  over  to  the  executioner. 

It  does  not  follow  because,  in  times  of  dominating  ecclesiastical 
influence,  and  under  the  auspices  of  a  church — which  always 
discountenanced  marriage,  and  surrounded  it  with  arbitrary  rules 
and  restrictions  ;  some  of  which  still  remain — the  British  parlia- 
ment passed  an  act  to  prohibit  and  punish  polygamy,  in  a  coun- 
try where  there  was  no  polygamy,  that  it  is  just  for  the  Congress 
of  the  United  States  to  enact  statutes  which,  in  effect,  dissolve 
the  marriages  of  a  community  where  polygamy  has  obtained,  and 
institute  disorder  through  the  outlawry  of  its  domestic  relations. 
Here  is  a  difference  so  broad  that  it  would  seem  as  if  no  extraor- 
dinary exercise  of  judicial  perspicacity  were  needed  for  its  com- 
prehension. The  statute  of  James  the  First  was  simply  brutum 
fulmen — a  piece  of  harmless  theological  thunder.  It  dissolved 
no  pluralities ;  for  there  were  none  to  dissolve.  It  prevented  none; 
for  there  was  no  tendency  to  their  contraction.  The  extreme 
punishment  which  it  denounced  against  offenders — that  of  death 
— is  proof  of  the  barbarism  of  the  period  and  the  bigotry  of  the 
church  to  which  it  owed  its  origin.  It  is  no  credit  to  the  Supreme 
Court  of  the  United  States  to  have  unearthed  this  still-born  and 
loathsome  remain  of  past  ecclesiastical  despotism  and  regal  super- 
stition, and  brought  it  to  light,  in  the  character  of  a  law  of  opin- 
ion and  conduct,  in  a  land  which  so  loudly  professes  to  be  eman- 
cipated from  every  form  of  prelatical  and  sacerdotal  bondage.  This 
is  fishing  in  waterless  pools  and  bringing  forth  the  corpses  of  the 
reptiles  that  had  famished  there,  to  be  resuscitated  and  recom- 
missioned  for  more  mischiefs  and  fresh  empoisonments. 

It  does  not  follow  even  if  there  had  been  polygamy  in  England 
at  the  time,  that  the  law  of  the  age  of  that  superstitious  pedant 


22 


James  the  First  is  binding  as  a  precedent  upon  the  Supreme 
Court  of  the  United  States,  or  is  a  justification  of  its  decrees  in 
any  case  or  under  any  circumstances.  From  the  theologico-ethical 
notions  of  that  period,  the  only  safe  rule  is  a  wide  departure.  The 
parliament  of  Great  Britain,  of  that  era,  may  have  been  no  wiser 
or  freer  from  unwholesome  influences,  than  the  parliament  of  the 
United  States  of  the  present;  and  of  the  latter  it  may,  not  with- 
out justice,  be  said,  that  it  is  to  be  hoped  its  successors  of  two 
centuries  in  the  future  will  be  too  prudent  to  follow  many  of  its 
examples.  At  any  rate,  the  fact  that  such  a  statute  was  passed 
at  such  a  time,  or  at  any  other  time,  under  such  or  any  other  au- 
spices, is  as  frail  a  basis  upon  which  to  found  a  judgment,  by  a 
tribunal  in  this  age  and  country,  in  a  matter  of  incalculable  im- 
portance to  a  great  community,  and  involving  their  dearest  rights 
highest  interests  and  most  sacred  affections,  as  could  well  be  dis- 
covered ;  and  it  is  to  be  hoped  that  the  court  had  the  grace  to  feel 
a  sense  of  littleness  when  it  made  the  citation.  It  is  the  paltri- 
ness of  pettifogging  arrogance  thus  to  grope  among  the  relics  of 
dead  barbarisms  to  find  excuses  for  oppression. 

It  would  seem  to  be  matter  of  doubt,  judging  from  the  tenor 
of  the  decision,  whether  the  court  very  well  understood  itself ; 
while  in  respect  to  its  understanding  of  the  relations  between  so- 
xjiety  and  government,  there  can  be  no  doubt  whatever.  While 
in  one  sentence  it  gives  the  information  that  society  is  founded 
upon  marriage,  and  in  the  next  that  government  is  founded  upon 
society,  in  the  very  next  it  conveys  the  astounding  intelligence 
that  it  is  within  the  legitimate  power  of  government  to  take  ju- 
risdiction of  the  fabric  of  society  and  to  appoint  the  relations  in 
which  its  factors  are  to  stand  to  each  other.  According  to  the 
deliberate  opinion  of  the  Supreme  Court  of  one  of  the  most  en- 
lightened of  modern  nations,  society  and  government  hold  to 
each  other  the  positions  of  mutual  creators  and  created.  Society 
creates  government ;  government,  by  way  of  returning  the  favor, 
turns  round  and  creates  society.  It  does  even  more  than  this,  it 
dives  to  the  very  bottom  of  things  and  ordains  the  relations  upon 
which  society  rests  for  its  foundation.  Hints  of  another  such 
an  interchange  of  functions  are  to  be  found  nowhere  else  than 
in  some  of  the  fantastical — sometimes  called  heathen — mytholo- 


This  is  communism.     It  is  the  fundamental  doctrine  of  modern 
communism  that  government  is  the  creator  of  society,  from  which 


23 


ifc  infers — and  logically — that  the  jurisdiction  of  government  com- 
prehends not  only  the  domestic,  commutual  and  proprietary  re- 
lations of  the  social  elements,  but  their  unrelated  acts,  conduct, 
habits,  pleasures  and  indulgences.  It  is  the  doctrine  which  the 
malignant  charlatan  Phillips  delivers  in  lecture  halls  to  applaud- 
ing audiences,  and  the  vulgar  ruffian  Kearney  roars  in  the  sand- 
lots  to  auditors  equally  enthusiastic ;  and  it  is  the  doctrine  which 
tramps  and  vagabonds,  in  their  own  characteristic  way,  carry  in- 
to effect  when  they  enter  houses  and  demand  entertainment,  des- 
troy the  labor-saving  implements  of  the  agriculturalist,  cast  rail- 
way trains  from  their  tracks  to  rob  the  passengers,  and  burn  the 
depots  and  rolling-stock  of  railway  companies.  It  is  a  reflection 
of  the  spirit  of  the  weak,  the  exhausted,  the  morbid  and  the  de- 
preciated, bent  to  make  it  the  law  that  there  shall  be  none  braver, 
stronger,  richer  or  more  potent  than  themselves.  It  is  the  faith 
of  the  leveler,  who  clamors  for  uniformity ;  who  would  obliterate 
the  difference  between  the  sexes ;  would  compel  all  the  young  to 
be  educated  according  to  a  common  measure  and  model ;  would 
equalize  estates  by  division  or  by  destruction  ;  would  war  against 
property  honestly  acquired  and  tax  the  industrious  to  support  the 
idle;  would  abolish  all  the  great  industrial  enterprises  on  account 
of  the  incidental  disparities  of  which  they  are  the  occasion,  and 
institute  a  regimen  of  hate,  envy  and  anarchy.  To  this  cause 
the  Supreme  Court  of  the  United  States  has,  on  several  occasions, 
afforded  efficient  assistance,  and  in  no  instance  more  ill-advisedly 
than  in  the  case  here  considered. 

The  decision  of  the  court  is  broader  in  its  consequences,  per- 
haps, than  even  itself  has  suspected.  It  places  in  the  hands  of 
civil  governments  everywhere,  absolute  power  over  the  marriage 
relation. 

The  relations  of  society,  domestic,  commutual  and  economical, 
are,  all  of  them,  in  substance,  contracts  upon  conditions,  express- 
ed or  implied,  and  for  mutual  considerations.  If  one  form  or 
class  of  such  contracts,  and  the  right  to  enter  into  them,  is  with- 
in the  scope  of  the  written  law,  so,  for  a  common  reason,  are  they 
all ;  for  they  all  have  a  common  purpose  :  to  contribute  to  the 
convenience,  prosperity  and  happiness  of  the  people.  For  the  first 
time  in  the  history  of  jurisprudence,  the  Supreme  Court  of  the 
United  States  expresses  the  opinion  that,  at  least  in  one  instance, 
the  relations  of  society  are  within  the  scope  of  the  written  law. 
Savs  the  Chief  Justice : 


24 


"  There  cannot  be  a  doubt  that,  unless  restricted  by  some  form  of  Consti- 
tution, it  is  within  the  legitimate  power  of  every  civil  government  to  deter- 
mine whether  polygamy  or  monogamy  shall  be  the  law  of  social  life  under 
its  dominion." 

The  jurisdiction  of  the  written  law,  is  limited  to  that  which  it 
has  created  or  erected.  If  it  has  authority  to  fix  the  terms  of 
the  domestic  rehitions,  it  is  because  it  has  previously  established 
or  sanctioned  such  relations.  Now,  in  all  the  records  of  legislation, 
organic  or  statutory,  there  is  not  to  be  found  a  single  section  or 
clause  by  which  marriage  is  ordained.  Even  the  Levitical  law, 
which  antedates  all  other  known  written  institutes,  takes  the  do- 
mestic relations  as  they  pre-existed  its  delivery. 

The  unsound  doctrine,  in  the  foregoing,  begins  with  the  palpa- 
ble fallacy  that  there  can  be  no  law  of  higher  authority  than 
that  which  is  written  in  constitutions;  and  continues  with  the 
equally  faulty  precept  that  legislative  power  is  absolute  in  cases 
in  which  it  is  not  limited  by  express  constitutional  provisions. 
This  makes  human  free,  agency  a  matter  of  donation ;  and — in  the 
absence  of  paramount  written  provisions  to  the  contrary— reduces 
all  the  relations  of  life  beneath  the  jurisdiction  of  the  legislature 
ass3mblies  And,  as  a  legislative  power,  when  once  vested  is 
plenary,  it  makes  every  mode  of  contracting  lawful  or  unlawful 
accordingly  as  such  assemblies  may  see  fit  to  prescribe.  Wedlock 
ceases  to  be  a  natural  right  or  an  ordinance  of  divine  appointment, 
and  becomes  a  franchise  which  legislatures  may,  at  their  discre- 
tion, confer  or  withhold.  According  to  this  doctrine,  it  is  as  well 
within  the  power  of  these  bodies  to  abolish  monogamy  as  polyg- 
amy. This  will  be  acceptable  information  to  a  large  number  of 
active  social  reformers  in  the  United  States,  who  find  the  marital 
league  a  bondage  so  severe  and  humiliating,  a  yoke  so  galling  and 
oppressive,  and  a  cause  of  so  many  evils  and  miseries,  that  they 
are  unable  to  restrain  their  cries  for  relief  through  its  abolition. 
Nor  is  there  anything  irrational  in  looking  forward  to  .the  time 
when  politicians  will  find  it  for  their  interest  to  sympathize  with 
these  sufferers  under  the  despotism  of  custom  and  prejudice,  as 
they  have  with  others  in  similar  distress ;  for  if  there  is  anything 
with  which  a  politician  who  needs  votes  will  not  sympathize,  that 
thing  is  yet  to  be  discerned.  When  this  state  of  things  shall  have 
arrived,  legislative  bodies,  judging  from  the  history  of  the  past, 
will  have  no  difficulty  in  finding  reasons  why  the  voice  of  the 
oppressed  should  be  heard  and  the    prayers  of  their  petitions 


25 

granted ;  nor  will  judges  have  any  in  concluding  that  laws  to 
abolish  wedlock,  and  to  punish  those  who  indulge  in  it  are  strictly 
within  the  province  of  legislative  authority. 

There  is  no  extravagance  in  this  anticipation.  The  indictments 
which  sexual  communism— free  love— brings  against  the  state  of 
society  of  which  singular  marriages  are  the  basis,  are  severe;  and, 
in  many  respects  their  truth  is  beyond  denial.  If,  on  account  of 
the  elements  of  social  anarchy  it  includes,  polygamy  should  be 
forbidden,  a  thousand  times  more  should  monogamy.  The  char- 
acteristic facts  of  the  latter,  which  defy  concealment,  ^u'e  domes- 
tic infidelity  and  prostitution.  There  is  ground  enough  upon 
which  to  agitate ;  and  when  the  order  whose  calling  it  is  to  abol- 
ish have  completed  the  works  now  in  progress,  it  is  not  unreason- 
able to  apprehend  that  the  marriage  relation  will  come  next  in 
their  line  of  attack .  It  would  be  but  another  step  in  that  com- 
munistic  progress  to  which  statesmen  and  jurisprudents  have  al- 
ready afforded  so  large  a  measure  of  aid  and  encouragement. 

As  one  of  its  objections  to  polygamy,  the  court  ventures  the 
opinion  that  the  principles  of  civil  government  vary  with  the 
character  of  the  domestic  relations  of  the  people.  Says  the 
Chief  Justice : 

"  In  fact,  according  as  monogamous  or  polygamous  marriages  are  allowed, 
do  we  find  the  principles  on  which  the  government  of  the  people  to  a 
greater  or  less  extent  rests." 

In  support  of  this  conclusion  he  cites  Dr.  Francis  Lieber,  a 
philosopher,  who  infers  from  the  fact  of  certain  coincidences, 
that  a  certain  form  of  domestic  order  is  correlative  with  a  certain 
form  of  civil  institutes :  in  other  words  that  polygamy  and  arbi- 
trary government  are  inherently  allied.  If  it  could  be  shown 
that  monogamy  and  popular  government  were  invariably,  or  even 
generally,  coincident,  the  argument  would  have  some  validity. 
As  the  case  stands,  it  has  none  whatever.  There  is  no  evidence 
that  the  principles  of  civil  government  vary  with  either  domestic 
or  social  conditions.  Principles  do  not  change.  Forms  and  rules 
of  administration  differ,  as  the  civil  character  of  one  people 
differs  from  that  of  another ;  but  there  is  nothing  intrinsic  in 
the  unlikeness  between  the  custom  of  singular  and  that  of  plural 
wedlock  to  indicate  the  need  even  of  difference  in  forms  and 
rules  of  administration. 

The  notion  intended  to  be  conveyed  appears,  from  the  context, 
to  be  that  a  more  vigorous  and   absolute   regimen  is  required 


26 

for  the  maintenance  of  social  order  in  a  polygamous  than  in  a 
monogamous  community.     Proof  that   such  is  the  fact   in  the 
United  States  has  not  yet  appeared.      More  than  anything  else, 
the  Mormons  of  Utah  have  presented  the  similitude  of  a  flock 
of  sheep  surrounded  by  a  horde  of  wolves.      Amid  the  anarchy, 
terrorism  and  crime  that  has  made  horrid  the  vast  region  around 
where  they  are  located  they   have  been  the   one   orderly   com- 
munity.    They  have  divided  with  the   aborigines  the   office  of 
serving  as  subjects  of  lawless  depredation.     An  irregular  war- 
fare of  the  most  unscrupulous  character  has   been  prosecuted 
against  them  from  the  beginning  of  their  history.     Ecclesiasti- 
cal bigotry  has  laid  down  the  rule  which  unlicensed  ruffianism 
has  carried  into  execution.     Domineering  superstition,  from  the 
pulpit,  the  platform  and  the  press,  sounded  the  notes  of  assault ; 
to  which  outlawry,  hungry  for  plunder  and  thirsty  for  anarchy, 
made  haste  to  respond.     Venal  authors  have  been  hired  to  in- 
vent slanders  to  justify  the  outrages  that  have  been  committed. 
Scores  of  books  have  been  written,  thousands  of  sermons  preached, 
and  millions  of  newspaper  diatribes  published,  by  persons  who 
never   saw  a  Mormon,  to   prove  them  the   most   abandoned  of 
mankind.     Tale-bearers  have  gone  among  them  in  search  of  the 
materials  of  scandal ;  finding  of  course,  all  they  had  pre-deter- 
mined  to  discover.     Under  a  charge  of  barbarism,  a  system  of 
unlicensed  barbarity  has  been  prosecuted  against  them,  disgrace- 
ful to  civilizLition  and  disreputable  to  Christianity.     They  have 
something  of  which  to  complain.     They  would  be  either  more 
or  less  than  human  if  they  did  not,  now  and  then,  manifest  a 
sense  of  injury  and  a  feeling  of  resentment.     If  there   is  any- 
thing in  their  conduct  to  merit  surprise  it  is  their  forbearance. 
They  are  sincere  believers  in  their  mode  of  worship  and  plan  of 
social  and  domestic  order,  and   suffer  as   other  believers   suffer 
when  things  which  they  hold  sacred  are  disparaged  and  pro- 
faned.   Whatever  abstract  opinions  others  may  entertain  of  their 
system,  it  is  agreeable  to  them.      Under  it,  they  enjoy  harmony  ; 
and  it  might  not  unsuitably  be  asked  :   Has  not  the  government 
of  the  United  States  enough  on  its  hands  of  communities  in  dis- 
order, that  it  needs  to  turn  upon  and  inaugurate  anarchy  in  an- 
other ?     Government  may  create  a  solitude  and  call  it  peace  ;  it 
may  institute  confusion  and  call  it  order ;  but  such  counterfeit 
peace  and  order  are  as  horrid  as  the  genuine  are  excellent ;  and 
a  government  which  unadvisedly  breaks  up  an  established  social 


27 

condition  upon  some  procrustean  theory  of  uniformity,  manifests 
thereby  its  total  unfitness  to  be  entrusted  with  any  species  of 
authority. 

The  Supreme  Court  of  the  United  States  was  not  created  to 
sit  in  judgment  upon  sentimentaUsms.  With  the  opinions  which 
one  class,  order  or  integer  of  a  people  may  entertain  of  another, 
it  has  no  legitimate  concern.  There  is  nothing  in  its  commission 
which  constitutes  it  a  judge  of  the  abstract  merits  of  states  of  so- 
ciety ;  such  merits  being  matters  of  which  there  is  no  known 
standard  by  which  they  may  be  estimated.  Nevertheless,  as  the 
court,  in  its  wisdom,  has  seen  fit  to  regard  social  qualities  as  with- 
in its  jurisdiction,  and  to  make  its  views  thereon  the  basis  of  a 
decision  of  almost  unprecedented  portent,  a  brief  comparison  of 
the  state  of  society  which  it  approves  with  that  which  it  condemns, 
will  not  be  impertinent. 

The  factors  of  every  mode  of  communital  arrangement  regard 
their  own  as  the  true  expression  of  the  perfect  in  principle.  Prac- 
tically it  may  exhibit  grievous  diseases  and  blemishes,  but  these 
are  held  to  be  not  inherent  but  accidental;  which  only  need  the 
appliance  of  supervisions,  penalties  and  other  curative  processes 
for  their  removal.  Entertaining  these  views,  they  correspond- 
ingly look  upon  every  other  social  mode  as  wilfully  wrong,  as  sin- 
ful and  malignant,  as  contrary  to  the  laws  of  nature,  or,  as  the 
case  may  be,  to  the  commands  of  God ;  are  prepared  to  pronounce 
it  wicked  and  dangerous,  inimical  to  good  government,  and  in 
direct  contravention  of  the  dictates  of  civilization  and  the  princi- 
ples of  Christianity.  Its  defects  are  affirmed  to  be  intrinsic  ;  tlie 
necessary  outgrowths  of  its  unsound  constitution.  They  are 
cankers,  plague-spots,  demanding  the  knife  and  the  cautery,  ap- 
plied not  merely  to  the  diseased  tissue,  but  to  the  body  in  which 
they  originate.  Hence  they  feel  it  their  duty  to  agitate,  and  the 
uneasy  of  their  species  do  agitate.  They  are  prepared  to  make 
great  sacrifices — not  of  their  own  goods  and  chattels,  perhaps, 
but  of  the  ease  and  peace  of  mind  of  the  reprobates — in  order  that 
the  land  may  be  disenthralled.  They  find  it  in  the  line  of  their 
duty  to  make  the  naughty,  uncomfortable.  With  agitation,  heat 
is  evolved,  and  communicated ;  and  the  sentimental  pestilence 
takes  on  a  malignant  form  and  spreads.  The  pulpit,  which  makes 
haste  to  catch  every  prevailing  malady,  begins  to  resound.  The 
platform,  with  its  weather-cock  out  for  popular  breezes,  becomes 
animated.     The  press,  always  on  the  watch  for  sensations  and  cir- 


28 


culation,  opens  out  in  unwonted  wealth  of  misinformation  and 
verbiage.  Politicians,  in  no  long  time,  find  that  there  are  votes 
latent  in  the  movement.  Party  platforms  expand  their  liberal 
bosoms  to  receive  the  new  doctrine.  Legislators  become  impressed 
with  its  magnitude  and  find  it  expedient  to  respond  to  so  distinct 
an  expression  of  popular  sentiment ;  and  judiciaries,  not  to  be  de- 
linquent in  so  noble  a  cause,  tax  their  ingenuities  to  find  law 
to  suit  the  situation.  Thus  it  is  that  courts  are  constrained  to 
sit  in  judgment  upon  sentimentalisms. 

Nevertheless,  states  of  society  are  not  to  be  judged  by  their  own 
sentimental  law,  which  is  always  in  their  favor;  nor  that  of 
others,  which  is  uniformly  against  them.  They  are  to  be  judged 
by  the  actual  of  their  phenomena.  They  are  not  to  be  appraised  by 
what  Mr.  Francis  Lieber  or  any  other  abstractionist  imagines  to 
be  their  tendencies ;  but  by  their  present  facts  through  which 
their  tendencies  are  visibly  and  authentically  expressed.  There  is 
no  difficulty  in  ascertaining  what  is  the  rule  of  judgment,  for  it 
is  self-evident.  It  has  been  many  times  laid  down,  by  writers  up- 
on social  science,  from  the  time  of  Grotius  and  Adam  Smith  to 
that  of  Herbert  Spencer.  That  state  of  society  is  right  in  which 
the  social  particles  are  in  harmony.  The  fact  of  concordant  ex- 
istence is  proof  absolute  of  the  right  to  exist.  It  is  evidence  that 
the  condition  is  the  expression  of  the  character  of  the  factors ; 
and  neither  legislature  nor  judiciary  is  authorized  to  infer — what 
none  can  safely  predict — tliat  the  factors  would  be  better  dis- 
posed if  the  condition  were  reconstructed. 

If  the  patriarchs  of  the  Mormon  community  had  set  them- 
selves deliberately  to  plan  and  construct  a  scheme  of  social  and 
domestic  order,  wherein  the  most  flagrant  and  harmful  of  the 
evils  and  plagues  which  infest  society  elsewhere  should  fail  to 
obtain  an  entrance,  they  could  not  have  acted  with  more  wisdom 
than  that  by  which  their  work  was  characterized.  Foremost 
among  these  evils  and  plagues  are  conjugal  infidelity  and  prosti- 
tution. Both  are  characteristic  of  and  inseparable  from  a  state  of 
society  founded  upon  singular  marriages.  They  have  been  ever 
present  with  such  states  of  society,  and,  both  alike,  have  effectu- 
ally resisted  every  effort  for  their  removal  or  mitigation.  The 
former  is  the  parent  of  innumerable  crimes  and  perfidies,  and  is 
the  occasion  of  more  acute  unhappiness  and  deadly  enmity  than 
:ill  other  causes  combined  ;  the  latter,  the  scatterer  of  the  seeds  of 
disease,  decrepitude  and  death  ;  the  corrupter  of  the  blood  of  na- 
tions; the   sapper  that  undermines  the  collective  constitution: 


29 

sending  taints  and  rottenness  down  from  progenitor  to  posterity 
— to  reappear  in  scrofulous,  tuberculous  and  cancerous  com- 
plaints :  in  weaknesses,  prematurities,  effeminacies  and  inefficien- 
cies. Conjugal  infidelity  holds  society  perpetually  upon  the  verge 
of  anarchy.  Compelled  to  purchase  order  at  the  expense  of  hypoc- 
risy, society  dares  not  turn  its  reluctant  senses  upon  the  pool  of 
corruption,  only  too  palpable,  in  which  it  wades ;  and  the  clam- 
ors of  an  accusing  conscience,  or  the  protests  of  honest  censure 
are  met  by  pretenses  of  disgust,  or  promises  of  reform,  or  profes- 
sions of  piety,  or  complaints  that  the  law  does  not  execute  its 
mission  and  restrain  or  punish  the  offenders. 

In  Mormon  don  effectual  obstacles  have  been  created  to  put  an 
end  to  these  plagues,  and  that  by  the  simplest  means :  the  provid- 
ing of  every  marriageable  woman  with  a  husband  and  a  home. 
There  may  be  less  of  poetry  in  this  arrangement,  but  there  is 
more  of  safety;  less  of  factitious  sentiment,  but  more  of  intrin- 
sic sincerity.  In  the  Territory,  conjugal  fidelity  is  the  rule;  in 
the  States — at  least  with  one  of  the  sexes — it  is  the  exception. 
In  the  former,  prostitution  is  not  prohibited,  but  forestalled  and 
prevented ;  in  the  latter,  in  the  face  of  the  menaces  of  law  and 
the  vigilance  of  administration,  it  survives  undiminished ;  borne 
as  a  lesser  evil  than  tlie  disorder  which,  if  the  thing  were  possible, 
would  attend  upon  its  suppression.  The  majority  of  masculine 
mankind — the  robust,  the  active  and  the  enterprising  are  plural- 
ists  in  fact.  The  difference  between  the  men  of  the  Territory 
and  the  men  of  the  States,  is  in  the  hypocrisy  of  the  latter  which 
professes  sentiments  it  does  not  feel,  and  pretends  a  continence 
which  it  neglects  to  practice. 

Between  singularism  and  pluralism,  the  question  resolves  itself 
into  an  inquiry :  Which  is  the  more  wholesome,  the  legitimate  and 
orderly  or  the  illegitimate  and  disorderly  ?  The  very  statute  to 
prohibit  and  punish  that  which  is  dishonestly  called  "bigamy" 
in  the  Territories,  was  passed  by  men  a  majority  of  whom  were 
living  in  concubinage.  There  are  more  practical  pluralists  in 
Washington,  in  proportion  to  the  inhabitancy,  than  there  are  in 
Mormondom.  The  ratio  of  men  in  Congress  who  have  supple- 
mentary wives  in  everything  but  name,  honor  and  subsistence,  is 
higher  than  that  of  the  men  who  have  such  wives  whom  they 
love,  honor  and  provide  for  in  the  tabernacle  at  Salt  Lake  City 
The  Mormon  limits  his  wives  by  his  means ;  taking  the  future  as 
well  as  the  present  into  account;  the  statesman  is  subject  to  no 


30 


such  restriction  ;  for  the  pubhc  supports  his  concubines,  and  the 
relation  is  contingent  upon  the  maintenance  of  his  position. 

Which  is  the  more  wholesome  arrangement — the  better  state  of 
society— the  most  in  unison  with  the  dignity  of  manhood  and  the 
purity  of  womanhood  ?  Which  is  more  significant  of  paternal  loy- 
alty and  maternal  truth,  things  of  importance  to  the  next  genera- 
tion? One  is  symbolical  of  human  honor,  faith  and  symplicity ; 
the  other  of  human  meanness,  selfishness  and  double-dealing. 
Which  is  which  ?  Where  is  the  rule  by  which,  wlien  these  scenes 
and  events  stand,  awaiting  the  final  verdict,  before  the  tribunal 
of  the  future,  they  are  to  be  judged  ?  Is  it  recorded  in  the  act  of 
Congress  of  1862  ?  Is  it  embalmed  in  the  opinion  of  the  Supreme 
Court  of  1879  ?     Assuredly  in  neither. 

It  is  not  proposed,  in  this  inquiry,  to  examine  the  points  under 
the  law  of  evidence  raised  in  the  court  below  by  the  counsel  for 
the  defendant,  nor  to  review  the  opinion  of  the  court  above,  by 
which  those  of  the  former  were  sustained.  The  almost  painful 
elaboration,  by  the  latter,  upon  these— in  striking  contrast  with  its 
summary  disposition  of  the  principles  involved  in  the  main  issue 
— would  inspire  a  hope  that  the  work  was  faithfully  performed, 
in  the  face  of  the  fiict  that  the  decisions  were  uniformly  in  favor 
of  the  prosecution.  There  is  a  point  however  under  the  laws,  in 
respect  to  the  qualifications  of  jurors,  which  invites  examination ; 
before  proceeding  to  which,  in  oi-der  that  the  analysis  may  be  in- 
telligible, a  survey  of  the  situation  is  requisite. 

Polygamy  and  bigamy  are  acts  the  knowledge  of  which  has 
been  present  to  the  law  as  long,  to  say  the  least,  as  the  English 
language  has  existed  ;  the  one  as  a  custom,  the  other  as  a  crime. 
Bigamy  has  been  known,  from  the  earliest  periotl  of  English  jur- 
isprudence, as  "  a  common  law  offense,"  polygamy  was  declared 
to  be  a  crime  by  statute  in  the  reign  of  that  theological  potentate 
James  the  First.  In  the  United  States,  the  characteristic  distinc- 
tion between  the  two  acts  has  always  been  preserved.  K"o  lawyer 
at  the  bar,  nor  judge  upon  the  bench,  would  have  confounded  the 
one  with  the  other,  any  more  than  he  would  have  overlooked  the 
unlikeness  between  a  purchase  in  oj^en  market  and  a  robbery  upon 
the  highway. 

The  act  of  Congress  of  1862  describes  a  polygamous  marriage 
and  calls  it  "  bigamy,"  thereby  creating  a  factious  offense — a  new- 
fitshioned  bigamy.  Under  the  laws  against  the  old-fashioned  big- 
amy, only  the  party  guilty  of  a  fraud  practised  upon  the  other  was 


3i 

punished;  under  the  act  which  generates  the  new,  both  parties 
are  punished,  as  if  guilty  of  a  trespass  each  upon  the  other.  In 
pursuance  of  this  act,  in  October,  1876,  George  Reynolds  was  in- 
dicted, in  the  District  Court  of  the  United  States  for  the  Territory 
of  Utah,  for  the  crime  of  bigamy;  he,  the  said  defendant,  having 
married  one  Amelia  Jane  Schofield,  being  then  already  married  to 
one  Mary  Ann  Tuddenham.  The  act  was  passed  in  1862  pre- 
vious to  the  marriage. 

Before  the  passage  of  the  act  to  marry  one  wife  having  another, 
was  not  illegal ;  and  such  as  had  so  married  were,  and  continue 
to  be,  in  contemplation  of  the  laws  of  the  United  States,  good  and 
lawful  citizens.  As  no  person  can^  by  the  same  transaction,  be- 
come both  a  bigamist  and  a  polygamist,  it  follows  that  such  had 
completed  their  marital  adventures  before  the  passage  of  the  act, 
remained  polygamists,  while  such  as,  after  the  passage  of  the  act, 
entered  into  plurality  engagements  thereby  became,  in  the  eye  of 
law,  bigamists.  In  short,  the  act  of  1862  established  a  broad  dis- 
tinction between  bigamy  and  polygamy — between  loyal  and  the 
criminal  pluralists. 

In  the  administration  of  injustice,  equivocations  are  convenient; 
but  the  presence  of  the  equivocation  testifies  to  a  contemplated 
injustice.  The  defendant  was  indicted  for  bigamy ;  but,  as  ap- 
pears throughout  from  the  proceedings,  arraigned  and  tried  for 
polygamy.  Thus,  on  the  trial  of  a  person  charged  with  a  specific 
offense— with  having,  on  a  certain  day,  perpetnited  an  act  of  big- 
amy, a  juror  is  put  upon  oath  for  an  inquiry  into  his  competency, 
and  questioned  in  respect  to  his  domestic  relations.  He  is  asked, 
"  Do  you  live  in  polygamy?  " — and  it  appearing  to  the  satisfaction 
of  the  court  that  he  does  live  in  polygamy,  he  is  found  unfit,  and 
excluded  from  the  panel. 

Jurors  are  tried  by  two  processes :  upon  their  voir  dire,  as  it  is 
called,  and  upon  evidence  alitmde,  of  third  persons ;  but  not  by 
both  ;  counsel,  electing  one,  not  being  permitted  to  resort  to  the 
other.  It  is  a  rule  of  the  law,  that  no  person  called  as  a  juror 
shall  be  asked  questions,  the  answers  to  which  might  tend  to  his 
general  depreciation.  No  witness,  in  a  court  of  justice,  is  com- 
pelled, out  of  his  own  mouth,  to  criminate,  no  juror  to  diminish 
himself;  and  yet,  for  no  other  purpose  than  that  of  disparagement 
and  disqualification,  this  inquiry  was  allowed. 

Here  was  a  manifest  violation  of  an  established  rule  of  judicial 
obligation.     It  did  not  follow,  even  if  the  disfranchised  jurors — 


33 

of  which  there  were  several — lived  in  polygamy,  that  .they  were 
obnoxious  to  the  provisions  of  the  act  of  1862,  under  which  the 
defendant  was  indicted ;  nor  that  they  were  inimical  to  the  law, 
or  opposed  to  its  execution.  If  there  had  been  authority  to  begin 
the  inquiry,  justice  would  demand  that  it  should  be  prosecuted 
until  tlie  exact  status  oi  the  party  had  been  ascertained ;  but 
there  was  no  such  authority.  This  was  equally  the  right  of  the 
juror  and  of  the  defendant ;  but  it  is  manifest,  that,  in  contem- 
plation of  the  court  below,  and  of  the  court  above— by  which  the 
decrees  of  the  court  below  were  approved— neither  juror  nor  de- 
fendant had  any  rights  which  they  felt  themselves  bound  to  re- 
spect. The  court  was  appointed  to  be  a  terror  to  every  evil-doer 
of  the  plurality  species,  whatever  the  grade  or  variety  ;  and  the 
uniformity  with  which  it  decided  every  provisional  question 
raised  by  the  prosecution  in  its  favor,  and  every  one  raised  by 
the  defense  against  it,  is  evidence  that,  in  the  discharge  of  its 
mission,  its  heart  knew  no  fear,  its  hand  no  hesitation. 

Under  the  mechanical  practice  of  the  law,  which  makes  the  bar- 
rister a  tradesman,  and  the  text-writer  an  epitomist — neither  of 
them  having  any  conception  of  the  philosophy  that  underlies  their 
forms  and  precedents— it  ceases  to  be  known  that  the  source  of 
such  forms  and  precedents  was  other  than  arbitrary.  Men  write 
and  argue,  for  example,  for  and  against  the  trial  by  jury.;  neither 
party  comprehending  how  nor  why  it  grew  into  existence,  nor  in 
what  pressing  human  want  it  originated.  It  is  forgotten,  or  re- 
garded as  of  no  significance,  that  the  fundamental  law  of  the  trial 
by  jury  is,  that  men  shall  be  judged  by  "  their  peers  of  the  vicin- 
age " — their  equals,  likes,  neighbors ;  persons  of  a  common  meas- 
ure with  themselves;  representatives  of  the  feelings,  sentiments, 
prejudices  and  beliefs  of  the  social  order  to  which  they  belong. 

The  trial  by  jury  has  no  archaic  history.  It  had  no  arbitrary 
or  conventional  beginning.  It  was  a  custom,  doubtless,  ages  be- 
fore it  was  a  law.  It  grew  into  existence  in  response  to  a  need 
that  was  felt,  rather  than  to  a  conclusion  that  was  formulated ; 
was  the  product  of  intuition  rather  than  of  reflection.  It  was  a 
thing  in  favor  of  justice,  and  to  adapt  its  distribution  to  the  cir- 
cumstances and  conditions  of  those  among  whom  it  was  admin- 
istered. The  jury  was  the  organ  chosen  by  society  to  speak  its 
voice.  Its  purpose  was  to  mitigate  the  inflexibility  of  the  written 
law,  by  the  antagonism  of  fellow  feeling  and  common  sympathy. 
Its  implied  rule  of  conduct  was,  ^'  we  punish  no  man  for  being 


33 

no  better  than  ourselves."  With  it,  the  question  was  not  whether 
the  accused  had  committed  the  act  charged,  but  whether  he  was 
guilty  ;  whether  the  deed  was  of  such  a  nature  that  the  common 
conscience  demanded  its  punishment.  The  jurors  are  "judges 
of  the  law  and  of  the  fact ;"  that  is  to  say,  they  are  judges  wheth- 
er the  character  of  the  fact  is  such  as  to  make  expedient  the  appli- 
cation of  the  law. 

According  to  this  principle,  in  the  trial  of  the  case  under  con- 
sideration, Mormons  were  in  no  wise  unfit  for  the  position  of  ju- 
rors. On  the  other  liand,  they  had  every  requisite  legal  and  moral 
qualification.  They  were  peers  and  of  the  vicinage,  capable  to 
speak  the  view  of  the  community  to  which  all  alike  belonged. 
Who  better  than  they  could  judge  what  was  suitable  to  its  '*  peace 
and  dignity  ?''  By  every  consideration  of  right  and  justice  their 
exclusion  from  the  panel  was  an  act  of  wanton  and  illegal  oppres- 
sion. According  to  the  terms  of  the  indictment,  it  was  not  the 
Territory  of  Utah,  nor  the  Mormon  body,  nor  the  principles  of 
Mormonism  nor  polygamy  that  was  on  trial ;  it  was  a  single  indi- 
vidual. If  he  was  a  criminal,  and  there  were  any  interested  in 
his  punishment,  it  was  the  indiscriminate  inhabitancy  of  his  own 
neighborhood.  If  there  were  any  who  were  able  to  judge  wheth- 
er, according  to  the  common  standard,  he  was  too  much  of  a  rep- 
robate to  be  allowed  to  go  unrestrained,  it  was  they  who  best  knew 
his  disposition. 

But  it  was,  in  fact,  Mormonism  and  its  domestic  relations  that 
were  on  trial ;  and  when  the  Act  of  1862  was  passed,  the  judg- 
ments against  them  was  foreordained.  The  equivocation  em- 
bodied in  the  statute  has  borne  throughout  its  appropriate  fruits, 
in  sophistications  of  the  law,  in  violation  of  the  rules  of  juris- 
prudence, in  the  abandonment  of  fixed  maxims  and  precedents, 
in  the  privation  of  the  defendant  of  legitimate  means  of  defense, 
and  in  the  arbitrary  and  tyrannical  disparagement  of  the  whole  of 
a  numerous  and  loyal  population.  The  court  has  done  its  work 
— all  the  courts  have  performed  their  respective  parts  in  the  pro- 
gramme, accordingly  as  the  same  were  appointed;  but  they  have 
not  done  justice.  They  have  won  a  round  of  applause  of  a  num- 
ber of  fanatical  men  and  silly  women,  whose  fanaticism  and  silli- 
ness, so  far  as  lies  in  their  power,  they  have  made  the  law  of  the 
land.  But  they  have  done  that  against  which  every  spark  of  true 
manhood  will  protest ;  a  deed  disgraceful  to  themselves,  to  civili- 
zation and  to  humanity. 


